Escolar Documentos
Profissional Documentos
Cultura Documentos
A Pluto series
Series editor PETER FITZPATRICK
Professor of Law and Social Theory, University of Kent
Dangerous Supplements
EDITED BY PETER FITZPATRICK
Pluto
Press
Contents
vi
vii
Acknowledgements
Preface
Part One
1
An Introduction to Foucault
Part Two
2
3
Foucault on Law
Part Three
4
5
6
7
39
59
75
99
117
127
133
13 7
145
Notes
References
Index
Acknowledgements
We thank the foliowing people for their kind and helpful comments
on various aspects of this book: Cora Baldock, Michael Booth, Kerry
Carrington, Ian Cook, Patricia Harris, Barry Hindess, Paul Hirst, Russell
Hogg, Gavin Kendall, Jeff Malpas, Pat O'Malley, Nikolas Rose, David
Silverman, Derek Smith, Bill Taylor, Grahame Thompson and Deborah
Tyler. We are extremely grateful to Yolie Masnada for her diligent help
with the preparation of the manuscript of Part Three.
Preface
viii
Part One
Michel Foucault: An Introduction
An Introduction to Foucault
he often, but not always, refuses to debate directly with the existing
body of scholarship. He generally avoids, for reasons we make clear,
the conventional strategy of scholarly writing, namely, to engage in
direct debate with those who have previously worked on the field of
inquiry before striking out to offer his own interpretation.
It is perhaps even more signiflcant that he avoids making use of
concepts used by others. Sometimes this is because he wants to distance
himself from the associated body of ideas which have developed
around them. This is especially apparent with respect to his relationship to Marxism. It is not that Foucault thinks, for example, that class
is an unimportant feature of social structures. Yet, by and large, he avoids .
analysis in terms of class in order to escape the view that classes are preconstituted social agents with already formed interests and ideologies.
This tendency to steer clear of existing intellectual markers and their
authors makes the task of situating Foucault in relation to key figures
like Marx and Weber fraught with controversy.
Foucault's writings are often 'difflcult', particularly on flrstencounter.
It is important to grasp why a certain degree of difflculty and obscurantism is built into his projects. He is consciously concerned to clear
the ground of conventional and taken-for-granted questions and
approaches in order to explore problems in new and different ways.
This rejection of conventional wisdom is apparent in many of his
studies. Take the question of the invention of prisons - it has been
around as a problem for a long time now. The conventional story with
which we are familiar runs something along the following lines:
premodern societies used to torture the bodies and cut off the heads
of their miscreants until gradually, through a series of imperceptible
measures of reform, punishment became less physical, less directed at
the body of the offender, and locking up offenders became the most
widespread form of punishment. But why? Well, the conventional story
runs, it is because people gradually became more civilised and as a result,
uneven and complex though the changes were, prisons replaced the
gallows. In similar vein we stopped locking up the insane in asylums
and began forms of treatment in institutions which exhibited features
of both hospitals and prisons. Foucault's work challenges such accounts.
Foucault insists that it is necessary to break with the natural or
common-sense reality of the many topics he studies. It is not so much
that he denies the existence of insanity or illness, but that he challenges
the taken-for-granted self-evidence of madness, sexuality, etc. Thus, in
his history of sexuality his starting point is to deny the familiar story
that once upon a time sexual life was natural and spontaneous but
gradually became subject to various forms of repression whether of guiltridden Christianity or of the secular moralism captured by the label
'Victorian'. According to the radical versin of this story associated with
the counter-culture of the 1960s, the time has now come to liberate
An Introduction to Foucault
'Conditions of possibility'
If there is one theme which approaches the status of being central to
Foucault's work it is that he is concerned to trace the 'conditions of pos
sibility' of the forms of social knowledge and practices which form the
immediate subject matter of his inquines.5 As with so much else in
Foucault it is as well to approach this topic by inquiring what it is that
he is seeking to avoid. The conventional approach of the social sciences
is to pursue a causal line of inquiry; to ask what is the cause of the shift
or change which stimulates the investigation. Such a causal approach
might ask: what caused the shift from the punishment of the body to
the imprisonment of the offender? What caused human sexuality
first to become the subject of medical intervention and later to come
under the sway of the psychological sciences?
Foucault rejects the preoccupation with causes. His rejection is
grounded in the tendency of such lines of inquiry to presume that social
life is subject to linear and evolutionary change; that the direction of
change can be understood as working towards some goal which may
at the time have been only dimly perceived by participants but which
was nevertheless implicit in the succession of stages that history
reveis. The questfor causes tends to introduce assumptions aboutthe
role of human intentions, that outcomes are the result of human
desires and plans. Foucault thinks that to speak of causes brings with
it assumptions that are best avoided.
Foucault's alternative focus on 'conditions of possibility' is selfconsciously more modest. It refuses any assumptions about the direction
of social change or the role of human plans or intentions. Instead it
asks: what combination of circumstances in dispersed and seemingly
unconnected fields of social activity combines in such a way as to give
rise to some outcome? The kind of inquiry he recommends - genealogical inquiry - manifests a general commitment to the specificity or
uniqueness of historical phenomena; it is for this reason that he insists
on the 'event'. We will return to this topic below in considering his
views on the methods to be pursued in historical inquiries. Foucault's
quest for 'conditions of possibility' is closely related to his refusal of
the label 'structuralist' which has so often been used to describe his intel
lectual position. The grounds for his resistance stem from his belief that
structuralism involves the idea that structures provide the conditions
of their own existence, they provide what is necessary for their own
An Introduction to Foucault
Discourse provides a means of designating the different forms of communication, but also of reminding us of the institutional, cultural or
constitutive place of language. The term reminds us that words work
for us because they are part of some wider phenomenon. While the
more important forms of discourse are speech or writing (texts),
discourse can also be non-verbal, physical acts (shaking hands) or
visual symbols (the genres of film that allow us to distinguish cartoons
from westerns). Discourse refers to elements which make up if not
always a coherent totality at least a wider frame of reference. Thus a
simple social practce such as entering a church where men take off their
hats and women keep them on is part of a discourse which we can
understand and make sense of involving elements about a sexual
divisin and features of theology; discourse is institutional doing and
the language it entails. Discourses put in place a set of linked signs. What
the concept captures is that people live and experience within discourse
in the sense that discourses impose frameworks which structure what
can be experienced or the meaningthat experience can encompass, and
thereby influencewhat can be said, thought and done. Each discourse
allows certain things to be said, thought and done and impedes or
prevents other things from being said, thought and done.
On the basis of this very general introduction to discourse we can
now turn our attention to the important directions in which Foucault
develops discourse theory. One of his concerns is to ask the question:
how do speciflc forms of knowledge and theory become possible (OoT
1970: xxi)? Much of his attention is directedtowards the formation of
a series of specialised intellectual discourses. For example, in The Order
o f Things his attention is focused on biology, linguistics and economics,
while in TheBirth ofth e Clinic (BC 1973) his focus is on the transformations in medical discourse. However, he is not only concerned
with such organised or professional discourses. In Madness and Civilization (M+C 1965), while paying attention to medical and psychiatric
discourses, his emphasis is on those discourses that grapple with the
relationship between madness and reason. Again, in The History o f
Sexuality (HoS 1978) he interweaves detailed consideration of theological
and medical discourses of sexuality with a broader concern with the
role of sexual discourses in everyday life. It is possible to identify a
number of features of his treatment of discourse.
Discourses have real effects; they are not just the way that social issues
get talked and thought about. They structure the possibility of what
gets included and excluded and of what gets done or remains undone.
Foucault identifles a distinctive feature of the discourses on sex - that
it 'never ceased to hide the thing it was speakingabout' (HoS 1978: 53).
In its most obvious sense discourse authorises some to speak, some views
to be taken seriously, while others are marginalised, derided, excluded
An Introduction to Foucault
10
animals are divided into: (a) belonging to the Emperor, (b) embalmed,
(c) tame, (d) sucking pigs, (e) sirens, (f) fabulous, (g) stray dogs, (h)
included in the present classiflcation, (i) frenzied, (j) innumerable,
(k) drawn with a very flne camel-hair brush, (1) et cetera, (m) having
just broken the water pitcher, (n) that look from a long way off like
flies. (OoT 1970: xv)
Foucault makes us aware of the centrality of classiflcation and ordering
of knowledge by exposing us to a classificatory 'grid' which through
the prevailing western episteme is incoherent or even crazy. The
epistemes refer to these broad constellations or pattems of thought. He
identifies a number of historical shifts or displacements which yield
a broad periodisation of western history; successive epistemes are
incommensurate and thus mark shifts or ruptures in the organisation
of human knowledge. He speaks of two great discontinuities in the
episteme of western culture: the first brings about the 'Classical Age'
(mid seventeenth century) and the second the 'Modem Age' (beginning
of the nineteenth century), 'the threshold of modernity' (OoT 1970:
xxiv). We see in Part Two that this periodisation into classical and
modern plays an important part in his writing on law.
It should be noted that while Foucault emphasises the importance
of discourses he avoids suggesting that the social is coextensive with
discourses. He explicitly recognises the existence of a realm of nondiscursive elements.
what I cali an apparatus is a much more general case of the episteme-,
or rather, that the episteme is a specifically discursive apparatus,
whereas the apparatus in its general form is both discursive and nondiscursive. (P/K 1980: 196-7)
It remains unclear exactly what we are expected to understand the nondiscursive elements to be. When he uses the term he refers to
'institution' and to 'apparatus'; the latter he views as an ensemble of
discourses, institutions, laws, administrative measures, scientific
statements, philanthropic initiatives, etc. He distances himself from his
earlier image of the episteme as more or less unitary and coherent
frameworks of ideas (OoT 1970: 168).
We suggest that the most fruitful way to understand the relationship
between the discursive and the non-discursive is to see Foucault's
concern as being with the way in which specific discourses (e.g.
medical, legal) get articulated with other social practices external to
them. In simple terms, his concern is with the relationship between
ideas and practices.
A n Introduction to Foucault
11
12
An Introduction to Foucault
13
In order to think through the implications of the concept of 'powerknowledge' it is necessary to put aside what remains the commonplace
view, but one which was crucial to Enlightenment thought, that
knowledge can only flourish where power is absent, excluded or
suspended. Does this mean that we should challenge the idea at the
heart of today's human rights discourse, namely, that dictatorships are
bad because, among other things, they distort or suppress knowledge?
Foucault does not say that the link between power and knowledge is
ethically unimportant; rather he insists that it is inescapable. Henee
his target is the commonplace assumption in the liberal democracies
that all is well whenever and wherever knowledge can flourish independently of power. To understand the formation of any body of
knowledge always involves the consideration of the power dimensions
within which the knowledge is produced. But this is not to adopt the
naive moralism that knowledge is bad, polluted or corrupted by virtue
of its production within relations of power and within institutions. Thus
he speaks of the prison becoming a 'permanent observatory' and functioning as an 'apparatus of knowledge' directed towards the production
of 'docile and useful bodies' (D&P 1977: 136-8); there is an important
sense in which the modern prison is more cruel than the od physical
cruelties of torture since disciplines impinge on the soul, will or personality of the prisoner.
Once we have appreciated the ideas Foucault invites us to renounce,
or at least to suspend, we can then follow his application of the powerknowledge couplet. His point is simple but important: knowledge is a
major resource of power. He does not mean that we should simply
search out the social interests atplay within a power relation, but makes
a more complex point that experience always involves some play of
power/knowledge; for example, the discourses on human sexuality
involve a linkage of power, knowledge and pleasure (HoS 1978: 11).
He direets our inquiries towards the 'will to knowledge' that serves as
both the support and the instrument of power. The result of this line
of thought is to direct attention toward the sites of production of
knowledge, the leamed disciplines and the professions, in order to
unearth their complicity in power relations. Just as discourses exelude
or marginalise some other discourses while empowering others, so sites
of knowledge also subordnate other knowledge. Politically this leads
him to insistthat we attend to or listen to these altemative knowledges.
For example, the knowledge produced by the modern medical
profession has secured the medicalisation of pregnaney as an illness,
as a proper place in which to practise medical technologies. In so
doing the knowledge associated with the long-standing traditions of
midwifery has been marginalised and even criminalised, yet today in
many countries, midwives are not merely resisting but asserting their
legitimacy. It is, however, interestingto note that the general dominance
14
Power
Foucault proposes a radically new account of power. Perhaps the best
way to explore his account of power is to focus on the view of power
that he is trying to escape. He wants to get away from the simple
equation of power with repression. He sees this as particularly char
acteristic of the Marxist tradition. However, one can make his point
even more strongly by drawing attention to the pervasiveness of the
negative, normative view that 'power is bad'. It is of the greatest
importance to stress that he does not try to reverse this commonsense
view in order to say 'power is good'. Rather he encourages us to focus
on a more analytical and even descriptive approach; we should start
An Introduction to Foucault
15
16
An Introduction to Foucault
17
18
An Introduction to Foucault
19
20
Discipline
The general shift of attention towards 'small power' gives rise to one
of the most distinctive of Foucault's preoccupations, that of discipline.
His treatment of this key concept has both analytical and historical
dimensions. Analytically it identifies the existence of a whole complex
of techniques of power that do not rely on forc and coercion. Historically it generates his key thesis that discipline becomes the distinctive
form of modern power. He focuses on the rise in the eighteenth
century of new ways of controlling and training people, what he calis
'technologies of the body'. He gives the example of military training
the aim of which was to produce 'docile bodies' by means of a 'new
micro-physics of power' through the repetition of detailed tasks
epitomised by marching drill (D&P 1977:139). Perhaps the most dis
tinctive embodiment of 'discipline' to which Foucaultdraws attention
is the technique of 'surveillance'; more generally he draws attention
to the methods of observation, recording and training. The practices
that had long been enshrined in monasteries, armies and workshops
became generalised and came to permeate everyday social life.
The disciplines are characterised by these tiny, everyday, physical
mechanisms, by systems of micro-power.
The chief function of disciplinary power is to 'train' ... Discipline
'makes' individuis; it is the speciflc technique of a power that
regards individuis both as objects and as instruments of its exercise
... It is not a triumphant power ... it is a modest, suspicious power.
(D&P 1977: 170)
The formation of the insidious leniencies, unavowable petty cruelties,
small acts of cunning, calculated methods, techniques, 'sciences' that
permit the fabrication of the disciplined individual. (D&P 1977:
308)
These contrast sharply with the 'majestic rituals of sovereignty or the
great apparatuses of the state'.
An Introduction to Foucault
21
22
An Introduction to Foucault
23
24
An Introduction to Foucault
25
26
An Introduction to Foucault
27
28
An Introduction to Foucault
29
30
practical project of the social sciences to cise the gap between policy
and outcome. Foucault strives to go beyond this pragmatic concern with
'unintended consequences' by insisting that the very nature of power,
its success/failure, lies in what we might cali the necessary non-correspondence between discourse, practice and effects.
One of his most interesting but tantalising approaches to this
question is his discussion of 'strategy'. He uses the term in a very dis
tinctive way. He proposes that in specific historical conjunctures
combinations of plans or programmes, distinct forms of knowledge and
particular practices 'come together' so that it is possible to identify the
existence of a strategy, for example the strategy of rehabilitation in mid
twentieth-century penology. At the same time, he refuses the idea that
strategies are coherent vehicles of the intentions of some identiflable
social agent such as a class or aparty. He is, for example, very suspicious
of any talk about the 'strategy' of the capitalist class or even of govemments. He attempts to drive his point home, in a way which in the
long run probably confuses rather than clarifies, by suggesting that
strategies can exist without there being any 'strategists'.
There is no doubt that the issue he addresses is important and
complex. It is one that has a particular significance for our concern with
law for two significant reasons. First, law seems to provide strong
evidence of the existence of strategies. For example, legislation such
as the reform of the poor law in Britain in 1834 or case law such as Brown
v. Board o f Education (1954) in the United States conceming civil rights
seem to provide evidence of moments of significant strategic shifts.11
Second, such legal change suggests that at particular historical moments
law reflects or incorporates an aggregation or condensation of shifts
in the disposition or direction of power.
Since this issue of 'strategy without strategists' has special relevance
for our understanding of law we have highlighted this issue and we will
retum to it again in Part Two. For present purposes it is sufficient to
note that we think it is important to pose the question of whether the
state and the legal system are significant institutional locations at
which power becomes aggregated or condensed. Sometimes Foucault
seems to make precisely this point. In a very characteristic formulation
he arges that
domination is organized into a more-or-less coherent and unitary
strategic form; that dispersed, heteromorphous, localized procedures
of power are adapted, re-enforced and transformed by these global
strategies ... a multiform production of relations of domination that
are partially susceptible of integration into overall strategies. (P/K1980:
142; emphasis added)
An Introduction to Foucault
31
But more often his preoccupation with the heterogeneity o f power and
its tactics, its dispersin and its capillary nature leads him to ignore this
aggregation and even to deny it. While everyday power is undoubtedly
crucial it is also important to keep under consideration the fact that the
diffuse techniques of power sometimes come to be aggregated in the
massive institutional presence of State, legal, military and economic apparatuses. The limitations of Foucault's treatment of 'strategy' stem from
his insistence on the diversity of power relations while at the same time
rejecting both structural determination and the existence of objective
interests, such as those of classes or institutional apparatuses. The
result is that he is left with no means of accounting for the aggregation
or globalisation of power. To talk of strategy as he does is to imply some
principie for the historical patterns of power relations without providing
the means to offer an explanation of their specific manifestations.
Let us consider his analysis of the strategies at play in the regulation
of sex and sexuality. He arges that in the nineteenth century the
discourses of sexuality were dominated by medical concepts and
analogies but that these were replaced by psychiatric concepts and
analyses in the twentieth century. The challenge is to explain why it
was that this movement occurred, how it went in one direction rather
than another. Despite his invoking of 'strategy' his general theoreti
cal stance impedes him from providing any but the most gestural
account of how this occurred. Boaventura de Sousa Santos criticises
Foucault along similar lines when he suggests that Foucault simply goes
too far in stressing the dispersin and fragmentation of power and that
this results in a lack of attention to the way in which hierarchical
patterns in the forms of power emerge and then change to different
conflgurations (Santos 1985).
One alternative to Foucault's treatment of strategy is provided by
Poulantzas who seeks to avoid the idea of a unitary, omniscient,
omnipresent 'Power-State'. While he suggests that the State is indeed
potent and ubiquitous, at the same time he draws attention to the
prodigious incoherence and chaotic character of State policies. 'Strategy',
in this view, emerges only after the event through the collision of
different tactics in which the general pattem of change is the complex
result of the balance of forces produced when the specific tactics of a
variety of social movements and classes clash and compete (Poulantzas
1985:135-7).12 It is worth stating that though we suggest the limitation
of Foucault's neglect of the condensation of power, particularly of State
power, is significant, this does not detract from the exciting potential
opened up by his discussion of power and strategy.
32
A n Introduction to Foucault
33
to such voices that the time of men does not have the form of an
evolution, but precisely that of a history. (Is it Useless to Revolt?
1981:8)
This passage shows his effort to escape from a linear view of history
conceived as sequences of cause and effect. Rather, he insists that if
history is to show how we have become what we are (henee his
description 'history of the present'), then it is about the 'small'
happenings, not themselves part of any master plan or subject to any
grand design.
This approach to historical events ties in with his vectoral analysis
of power described above. Disparate forces act upon social objeets
and the end result (the direction in which the object moves) is the
outeome of that totality of disparate forces, but is a direction distinct
from any of the constitutive forces at work. Still with this analogy, if
we regard the vectors as the intentions of social agents, the resultant
vector is not the coordinated result of any particular intention(s), but
is, necessarily, radically contingent. Outcomes are limited by the 'field
of possibility' within which the action is situated. In brief, the direction
of history is contingent.
34
An Introduction to Foucault
35
century life. Yet on the surface his concerns appear to be characteristically 'historical'. Most of his major studies are preoccupied with
transformations occurring towards the end of the eighteenth century
and the early nineteenth century. In his last major project, on the
history of sexuality, his immediate focus of attention is even earlier,
on the sexual ethics of classical Greece and Rome. The further back his
immediate ob ject of inquiry is located the more fiercely are his concerns
located in the present.
Perhaps the most significant reason for the wide-ranging interest and
engagement with Foucault's work is not so much that there is agreement
with either his methods or his conclusions, but rather that his writings
capture a deep and pervasive disenchantment with the modern
condition. Gone is the optimism generated in the eighteenth century
with the advance of reason; he problematises the idea that things get
better, humanity progresses, becomes more civilised, dispenses with
myth, superstition and religin as knowledge spreads its revelatory light
over more topics of human concern. Similarly the projects of material
and scientific progress of the nineteenth century and the expansionary vistas of the early twentieth century came increasingly under
scrutiny.
The decades approaching the end of the twentieth century are
marked by an escalating sense of rupture, the sense of the end of an
epoch. The two great competing systems spawned by industrial
capitalism, socialism and liberalism seem exhausted, the confrontation
between the politics of left and right has become increasingly sterile.
Part of the importance of Foucault undoubtedly stems from the fact
that he captures the doubts and uncertainties that are so widespread
today. Sure, technical advances of enormous potential continu to be
produced, but Science and technology are, for very good reasons, now
viewed as just as much the illness as the cure. Foucault is a good
example of a late twentieth-century thinker forced to abandon the
optimistic scenarios of the nineteenth and early twentieth centuries.
In rejecting the now tarnished optimism with its confidence in the exponential growth of knowledge and material progress there is al ways the
danger of renouncing any concern with truth and knowledge and
lapsing into pessimistic fatalism. Foucault walked this wire; his writings
hover between an enthusiasm for the possibility of new emancipatory
projects and a fatalism which sees all new quests for knowledge as
yielding new and ever more sophisticated mechanisms of domination.
He also resonates with the current mood in that he is short on policy
and prescription since many of the problems we confront appear to be
intractable. He is deeply hostile to all myths and utopias whether od
or new, left or right. It is thus not surprising that there has been con
troversy over whether he should be regarded as optimist or pessimist,
conservative or anarchist. We decline to enter these controversies
36
because they are more about the politics of the commentators than they
are about Foucault's politics. In so far as it is relevant, his own selfconception aligns him with what used to be called 'progressive' causes,
but he refuses to use such a term because the very idea of 'progress' is
one of the myths that Foucault's work seeks to problematise.
We suggest that there is no embarrassment in holding that some of
Foucault's own political stances, such as his naive 'abolitionist' views
about criminal justice or his ill-advised enthusiasm for the regime of
the mullahs in Irn, are frankly silly and barely worth debating.
Certainlyhe holds on to the enthusiasms of Parisian radicalism of the
spring and summer of 1968 longer than most However, any serious
assessment of Foucault depends not on the causes he espouses but on
what those who read him can do with his enormously fertile leads and
suggestions. It is to this task that we now turn our attention.
Part Two
Foucault on Law
2
Law and Modernity
Introduction
W e start our examination of Foucault's treatment of law by reminding
the reader that we make no claim to 'discover' a ready-made theory of
law in Foucault's writing. Law is never one of his explicit objects of
inquiry. Nevertheless he has a considerable amount to say about law.
The question of law not only figures significantly, but persistently
returns in his texts.
Before exploring Foucault's treatment of law one qualification is
needed. For convenience we refer throughout to the terms 'law' and
'the law' in the singular. However, there is an important sense in
which such usage is misleading. Law is not and never has been a
unitary phenomenon, even though the assumption that it is, has
played a central role in most legal discourses and theories of law. We
adhere to a view that law is a complex of practices, discourses and institutions. Over this plurality of legal forms 'state law' persistently, but
never with complete success, seeks to impose a unity. This approach
can be identified by the label 'legal pluralism'. To speak of 'law' or 'the
law', as we do, can be excused only because it is easier for authors and
reader alike; we return to this issue in Part Three.
Our account of Foucault's treatment of law is organised as follows:
the main question we address is, what is the connection, if any,
between law and modernity? We start with the most prominent and
persistent theme in Foucault's writing, which we cali 'law versus
discipline'. We then criticise and assess the group of ideas associated
with this position. Then we turn our attention to some other themes
that are present in his work but which are generally less developed and
have received less attention than the law versus discipline thesis.
Law comes to the fore in a group of Foucault's major texts written
around the late 1970s. Law forms a significant motif in two of his most
important and best-known texts, Discipline andPunish (D&P 1977) and
The History ofSexuality (HoS 1978). Law also figures significantly in a
group of essays and interviews from the mid 1970s collected under the
significant title Power/Knowledge (P/K 1980). In this collection the
second of his 'Two Lectures' is centrally preoccupied with the distinction
he wishes to sustain between 'law' and 'discipline'. This lecture is
39
40
41
42
Not only does law exhibit its own 'will to truth', it declares the guilt
of offenders, and the truth/validity of its own rules, but it exerts
'pressure', 'a power of constraint', on other discourses: 'it is as if even
the word of the law could no longer be authorized, in our society, except
by a discourse of truth' (OoD 1981: 55). Indeed in modemity law, along
with Science, provides the privileged source of truth: 'It's the charac
teristic of our Western societies that the language of power is law, not
magic, religin, or anything else' (P/K 1980: 201).
The truth of law is inscribed in its ultimate capacity to impose
violence. Relations of domination are imposed, Foucault suggests, in
a passage with strong Nietzschean overtones, through its 'rituals, in
meticulous procedures that impose rights and obligations':
the law is a calculated and relentless pleasure, delight in the promised
blood, which permits the perpetual instigation of new dominations
and the staging of meticulously repeated scenes of violence. The desire
for peace, the serenity of compromise, and the tacit acceptance of
the law, far from representing a major moral conversin or a utilitarian calculation that gave rise to the law, are but its result and, in
point of fact, its perversin ... Humanity does not gradually progress
from combat to combat until it arrives at universal reciprocity,
where the rule of law finally replaces warfare; humanity installs
each of its violences in a system of rules and thus proceeds from
domination to domination. (NGH 1984: 85)
The history of legal truth reveis the shifting dependence of legal
thinking on other systems of knowledge. From the mid nineteenth
century legal thought became suffused with elements drawn from
the psychological sciences, most evident in the abiding concern to
understand the 'dangerous individual'; these developments were born
at the boundaries and interchanges between law, psychiatry, psychology
and medicine.
Only an act, defined by law ... can result in a sanction ... But by
bringing to the fore not only the criminal as author of the act, but
also the dangerous individual as potential source of acts, does one
not give society rights over the individual based on what he is?
(1988a: 150)
The full implications of this shift have been held back and impeded
by the continuing concern with legal issues such as intention, motive,
responsibility and the elaboration of defences. Foucault says, somewhat
cryptically, that the delay in fully grasping the 'new' principie
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sible for their application) transmits and puts in motion relations that
are not relations of sovereignty, but of domination. (TL 1980: 95-6)
This conception of 'right' is rooted in notions of a 'divine right of
kings' and in an imperative conception of law; the king's right is
viewed as a right to command. But in the passage quoted above
Foucault effects an unexplored shift; a shift from 'right' to 'rights'. This
has the eff ect of locating the modern discourses of 'rights' (whether of
private rights or human rights) as synonymous with the imperative
notion of 'right' of the juridical monarchy and to bind them cise by
attributing to rights a general function of legitimation. This slippage
from 'right' to 'rights' has serious consequences; it leads Foucault,
like many other recent radical thinkers, to disparage the transformatory capacity of rights within modern political systems. It also produces
a very distorted account of modern disciplinary society because he takes
no account of the struggles for civil and political rights which have
traversed all the fields of Foucault's own studies, whether of prisons,
mental institutions or hospitals. He makes an important point when
he insists that rights and freedoms are practices and no constitution
or bil of rights can strictly 'guarantee' them, but it does not follow that
such provisions are mere rhetorical flourishes.
Liberty is a practice ... The liberty of men is never assured by the insti
tutions of law that are intended to guarantee them. This is why almost
all of these laws and institutions are quite capable of being turned
around. Not because they are ambiguous, but simply because 'liberty'
is what must be exercised ... I think it can never be inherent in the
structure of things to guarantee the exercise of freedom. The guarantee
of freedom is freedom. (Rabinow 1984: 245)
The questions of sovereignty and power connect with his pervasive
concern with the enigma of modern power. In the classical era power
was transparent, epitomised by the command-power of the king,
while in modern society power has become diffused and its location
becomes almost mysterious. This shift is epitomised in the visibility of
political power and the often veiled reality of economic power. The
result is that the tracking of domination, its strategies, techniques
and technologies has come to form a central concern of both scholarship and political practice.
The problem for me is how to avoid this question, central to the
theme of right, regarding sovereignty and the obedience of individual
subjects in order that I may substitute the problem of domination
and subjugation for that of sovereignty and obedience. (TL 1980: 96)
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impulse that leads Foucault to marginalise the role played by law. The
first, as we have seen, is his historical analysis of the central role
played by law in constituting the pre-modern complex of monarchylaw-sovereignty. The second motive that leads him to displace law is
methodological. It stems from the reversal he advocates for the study
of power and involves a shift of emphasis from state-power to local or
'capillary-power'. He uses 'capillary' as a metaphor to illustrate the
multitude of small intersecting mechanisms through which power
passes in contrast to the heavy-hand of coercive power exemplifled by
the harsh punishments of the pre-modern era, such as capital
punishment or transportation.
One further feature of Foucault's treatment of 'discipline' should be
noted. In Discipline and Punish he focuses on 'the body' as the target
of first punishment and then discipline, but the subsequent trajectory
of his writing sees an expansin: first to focus on the 'soul' (the
'knowable man', the psyche, subjectivity, personality, etc.) as the
target of disciplinary practices; and second, in a more radical shift, to
focus on the 'government of the self'. In brief, there is a shift from
discipline to self-discipline. This progression is accompanied by the rise
of the psychological sciences and professions (Rose 1989). In this
change of emphasis from external constraint to internal states of
conscience there is a corresponding further disaggregation of law and
discipline.
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as to be beneath the attention of law but, on the other, are the very
stuff and heart of the modern disciplines.
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And again:
the instruments of government, instead of being laws, now come to
be a range of multiform tactics. Within the perspective of
government, law is not what is important. (G 1979: 13; emphasis
added)5
The deployment of 'multiform tactics' is illustrated in the link that exists
between 'government' and 'population' where a variety of experts
(quantifying, calculating and codifying) scattered across a range of
agencies generate social policies that operate both to constitute the
'social problems' at which govemmental action is directed and actively
to reglate, control and coordnate the targets thus created. Whether
Foucault is correct in suggesting that in this context of modern
government 'law is not important' we consider later.
Foucault abandons the historical distinction between the classical
and modern period. In its place he adopts a set of historical stages that
push the juridical state back into the feudal period, with the 'administrative state' grounded in 'regulation' emerging in the fifteenth
century and the 'govemmental state' in the seventeenth and eighteenth
centuries (G 1979: 21). The govemmental state is characterised by the
importance of the themes he had previously announced, the central
focus on the regulation of 'the population' (rather than territory) and
the role of 'plice'. He gives this stage a new designation when he speaks
of society being controlled by apparatuses of 'security'. He tries to
capture the new form of government by speaking of 'the governmentalisation of the state' by which he seeks to embrace the whole range
of govemmental activity, the 'multiform tactics'.
A significant implication of this treatment is that it amounts to a tacit
renunciation of the view that absolutism marks a more or less sharp
transition to the modern forms of power that he had previously
encompassed within the 'disciplinary society'. Nowthere is no break
or sharp transition, but rather an expansin in the range and scope of
govemmental institutions. But it is of the greatest signiflcance that what
gets missed in this protracted process, stretching from the eighteenth
century to the present, is any attention to the democratisation of the
representative institutions and, more generally, with forms of participation in govemmental processes, whether it be the rise of political
parties or participatory organisations such as trade unions. One further
consequence is that there is no place in his treatment for the notion
of citizenship and certainly nothing which corresponds to any idea of
an expanded citizenship that moves from the formal civil rights of the
eighteenth century to the securing of universal franchise6 and the social
citizenship, epitomised by the welfare state, by the mid twentieth
century (Marshall 1963).
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key formulations posits this historical shift from law to regulation. This
transition occurs when he suggests that law does not simply 'fade into
the background' (HoS 1978:144). It is this insight that is developed in
the 'late Foucault', the Collge de France lectures of 1978 and 1979,7
the essays 'Governmentality' (G 1979) and 'Omnes et Singulatim'
(O&S 1981), the interest in 'liberalism' and, more generally, in his
concern with the 'government of the self'. The root of this change of
approach is the basicbut important point that 'society' is an entity that
had, during the course of the eighteenth and nineteenth centuries, to
be discovered, whereas the nation conceived as a 'territory' was
something that could be acted upon. But 'society' is a 'complex and
independent reality that has its own laws' and thus cannot simply be
acted upon (Foucault Live 1989: 261). Society necessitates 'good
government', getting it right, since undesired results and unintended
consequences of any active intervention may actually make things
worse. It is this caution about the desirability and even possibility of
government that sparks his interest in liberalism. In this phase of his
work the earlier expulsin of law from modernity is significantly
modified. Now his conception of law focuses on the purposive rationality of the legislative output of representative legislatures. He
emphasises the increasing particularism of regulatory instruments.
The previous conception of law as a totalising and transcendentunity
is superseded by the historically specific production of regulatory
devices that mediate between state and civil society and between state
and individual. Foucault never developed this line of thought, but its
presence underpins our claim that the study of the part played by law
in modern governance is consistent with and can draw stimulus from
Foucault's work.
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Critique of Foucault's
Expulsin of Law
Introduction
The primary theme that emerges from Foucault's treatment of the
origins of the modern state and disciplinary society is one which casts
law in the role of a pre-modern harbinger of absolutism. This line of
thought can only impede inquiry into the part played by law in the
govemance of modern social relations. It is necessary to set out the deficiencies of this position in order to clear the space to embark on just
such an investigation. Foucault's tendency to marginalise law contrasts
sharply with the major drift of twentieth-century thought that has
invested law with an increasingly central role in modern society. Such
views cover a wide spectrum of recent social and legal theory; a thesis
that posits the increasing centrality of law can be attributed to such
diverse figures as Weber (1954), Poulantzas (1978), Dworkin (1986) and
Luhmann (1985), to ame only a few. The diversity of the accounts
that attribute increasing significance to law reveal the radical revisionism
that typifies Foucault's work.
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offences which took place during this period. This neglect of the core
economic offences parallels his more general lack of attention to
economic relations. Similar charges of omission and oversimpliflcation
can be made against his suggestion of a leap from torture to the rise
of incarceration; Foucault neglects the long process of elaboration of
the criminal trial and procedure (Langbein 1977; Minson 1985: 83-90).
The equation of law with commands tends to reinforce the commonplace reduction of law to criminal law. While criminal law lends
itself to being viewed as orders backed by threats this has only ever been
one of the faces of law. In partial defence of Foucault it should be noted
that the dominant tradition of legal theory in the English-speaking
tradition focused on exactly the same characterisation of law. John
Austin, whose influence lasted into the mid twentieth century, defined
law in just this way, as commands of the sovereign backed by the threat
of sanctions (Austin 1955). The other faces of law which, in so far as
one can safely quantify law, make up its great bulk of provisions
concern the detail of economic and kinship relations and the distribution of social authority. Foucault's conception of law entirely
ignores, eliminates, suppresses all of this as well as the great mass of
criminal law and what has so misleadingly come to be called 'prvate
law'.
This is exactly the point that H.L.A. Hart so famously made against
John Austin in The Concept o f Law (Hart 1961); an imperative conception
of law simply omits too much. In addition it also imports a dangerously
oversimplified history of law, one which views the development of law
as exclusively the consequence of the centralisation of power through
the monopolisation of the means of organised violence in the institution of the monarchical state. Again this view corresponds to a
certain commonsense view of legal history. It is a view which is not
entirely false; there is an important link between state formation and
the expansin of state-law, but again it tells only a part of the story.
The simple conclusin is that working, as he does, with such an
inadequate conception of law it is predictable that many of his pronouncements about law contribute little to an investigation into the
part played by law in the history of the changing forms of power and
government.
Foucault's derivation of law from monarchical power eliminates a
more adequate history of law as emanating from dispersed sites of royal
power, popular self-regulation, customary rights, competing specialised
jurisdictions (ecclesiastical, guild, commercial, etc.), local and regional
autonomies, and other forms of law. It was within this reality that royal
power, reaching its zenith in the absolutist state, fought a never ending
and never entirely successful battle to subdue and unify. The equation
of law with negative proscription involves the acceptance of an ideological conception that came to form the conventional view of the
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Part Three
Deploying Foucault for a Sociology
of Law as Governance
4
Governance and its Principies
Introduction
Our task in this chapter is straightforward: it is to offer a basic definition
of governance and to elabrate its four principies. Our discussion
covers the complexities of governance such that the reader is prepared
for our new sociology of law as governance. We conclude the chapter
with a brief discussion of one of the central complexities, the extremes
of governance.
We do not spend much energy in our discussion relating our points
directly to Foucault; we do so only occasionally. The Foucaultian
influence on our treatment of governance should be clear from the
preceding chapters. The Foucault who inspires this part of our book is
the Foucault who is interested in government alongside power, the
Foucault who uses the neologism 'governmentality' to capture
the dramatic changes in techniques of government developed in the
western world from the eighteenth century onwards. This may not be
the most popular Foucault, but we take it to be the most rewarding
Foucault for those, like ourselves, interested in new directions for the
sociology of law.
We are inspired not just by Foucault's direct discussion of govern
mentality (G 1979), but also and more importantly by the work of others
heavily influenced by Foucault's work on this notion which is contributing to a distinctive approach. The flavour of this approach is
captured in the collection edited by Graham Burchell, Colin Gordon
and Peter Miller, The Foucault Effect: Studies in Governmentality (1991).
We make reference to several of the essays from this volume. We also
direct the reader occasionally to the work of Nikolas Rose and Peter
Miller (Rose and Miller 1992; Miller and Rose 1990).
We do not deal directly with the notion of governmentality in
building our account of governance. Rather, we use governmentality
as a resource for and background to our account. We offer a sketch of
governmentality here to complement our earlier discussions such that
we allow the reader some insight into the richness of the Foucaultian
work in the area and a brief understanding of our resource pool. Our
sketch is drawn from Foucault's seminal essay (G 1979) and from
various other essays in The Foucault Effect (Burchell 1991).1
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A new Science arse which took this new entity as its object:
population became the proper concern of political economy. By
addressing population, governments were able to target each individual,
as a part of the population; the family as the unit of analysis of the
nation was now clearly insufficient. The regularities of the population,
in terms of mortality rates, epidemics, and so forth, could not be
understood as part of the economy of the family (the oeconomy) and
the new political economy, which gradually replaced this oeconomy,
recognised this. The family was still an important instrument of
government, but it was now secondary to the master concept of
population. The new political economy, which sought to promote the
flow of government between individual, family and state used the
concept of population as the primary means of recasting the art of
government. This Science dealt with the governmental imperatives
which flow between state and individual, taking the family as an
instrument in these strategies, rather than as a model for them.
The emergence of liberalism marked an important transition point
for discourses around the art of government We are especially interested
in the emergence of the liberal idea of a society where the liberty of
individuis was seen as being potentially guaranteed through security.
The reorganisation of government within the constraints of security
can be seen as an elaboration of the theme of the government of
fortune, that is, the management of whatever life or fate delivers. A
whole series of social technologies answered this need to govern
liberty; these include the public welfare mechanisms of the late
nineteenth and twentieth centuries and the modern welfare states
(Burchell 1991; Defert 1991; Ewald 1991).
Finally, a particular series of formal human sciences provided points
of articulation for governmentality: the rational economic man of
economics, the rational autonomous subject of psychology, the
autonomous social of sociology, all emerged at about the same time.
In addition, straddling these sciences, the science of statistics expanded
rapidly: a set of facts about the state was reformulated as a set of very
specific understandings of population; a precise knowledge of birth,
mortality, morbidity, longevity, health, illness, suicide, contributed to
the possibility of installing a new governmental rationality.
This complex of definitions, we arge, allows a firmer grasp of the
elusive theoretical instrument which is governmentality. Using this
complex, Foucault's periodisation is more easily followed. On the one
hand, Foucault points us towards an exponential growth in government,
in the elaboration and extensin of what it means to govern fortune.
n the other hand, he points us towards a series of very specific
historical techniques which are formative of our present.
As we suggested earlier, while our new sociology of law as governance
is primarily Foucaultian in its inspiration and direction, we draw on
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other traditions in its formulation. All of these but one are indirect. The
strongest indirect influences are Machiavellian political theory and
Weberian sociology, though there are definitely traces of ethnomethodological sociology and Parsonian sociology to be found as
well. The other tradition which directly influences our proposed new
direction is that provided by the work of Emile Durkheim. This
influence is made clear as we discuss the fourth principie of governance.
The only thing which needs stressing here about our Durkheimian
direction is that we are quite consciously attempting to provoke
interest in the strong connection we see between the Durkheimian
tradition and the emerging Foucaultian governmentality tradition.
Foucault himself is remarkably silent on the possibility of this
connection, as are most of his followers and most post-Foucault writers
in the Durkheimian tradition, though this latter situation may be
changing (Alexander 1988). When one considers Durkheim's pioneering
role in promoting the social as a special area of study on the one
hand and the Foucaultian interest in 'the invention of the social' on
the other, it is hard not to see the connection.
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Principie 1
All instances of governance contain elements of attempt and elements
of incompleteness (which at times may be seen as failure).
For us, social life is characterised by attempts to control or manage all
known objeets, including, crucially, other attempts, and by the fact that
every attempt falls short of complete control or management. This
incompleteness is central to the process of governance whether
complete or total control is explicitly attempted. Where only a small
amount of control is explicitly sought by the social actor(s) involved,
we say the lack of total management is 'incompleteness'. Where an
explicit attempt is made to achieve something like complete control
over a known object, we label the lack of total management 'failure'.2
Consider, first, the governance of unemployment levels by a national
government. Government officials may attempt to control unem
ployment only to the extent of limiting it within current policy
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Principie 2
Governance involves power (but only in a very particular sense) and
as such involves politics and resistance.
To use a mechanical metaphor, power, forus, is the always-incomplete
technical process by which governance drives the machine of society.
'Power' is a technical term involved in the always-incomplete operation
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'attempt at control - incompleteness (failure) - attempt at control incompleteness (failure)', no matter how long the cycle takes.
Consider the governance of a nation's economy and techniques to
do with controlling the money supply (monetarist techniques). These
techniques are constantly being challenged by other techniques to do
with, for instance, controlling demand. The form of the challenge may
be that the monetarist techniques are not the most efficient, not the
most humane, or not the most accurate in terms of the way the
economy works. What is most important for our account is the fact of
their being constantly challenged, that is, the fact that they create
contests over the governance of the nation's economy and thereby
create politics.
To take a less obvious example, consider the self-governance of the
'falling-in-love' emotions of a couple. The persons concerned may
feel that they are engaged in no governance at all, that their emotions
are swamping them, out of control. This is not possible according to
our theory of governance (and recent sociologicalresearch supports us;
see for example Jackson 1993; Duncombe and Marsden 1993). The
parties may well be using this 'let it just happen' technique, but it is
a technique nonetheless. Atanym om entthe alternative technique of
'be more sensible, don't let your emotions run away with you' may
challenge it, for instance. A contest between techniques is always
either happening or about to happen; governance is subject to politics.
We have laid the ground for an account of resistance. Resistance is
a technical component of governance, a component heavily involved
in the fact that governance is always subject to politics. Resistance is
part of the fact that power can only ever make a social machinery run
imperfectly or incompletely.
In Foucault's words, resistance is the 'counter-stroke' to power, a
metaphor with strong technical, machine-like connotations. Power and
resistance are together the governance machine of society, but only in
the sense that together they contribute to the truism that 'things
never quite work', not in the conspiratorial sense that resistance serves
to make power work perfectly.
To reformulate our two previous examples, we can say the challenge
presented by demand-management techniques of economic governance
to the dominance of monetarist techniques is resistance and we can
say that the challenge presented by the 'act sensibly' technique of selfgovemance to the dominance of the 'let it all go' technique is resistance.
We can even say that those individuis, groups and organisations
involved in promoting the challenge of demand-management
techniques to monetarist techniques are involved in resistance (it
would be unusual, though not improper, to describe one 'side' of a
person's 'self' as politically resisting another 'side'). However, this
should not be taken to mean that resistance per se drives governance
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Principie 3
Governance always involves knowledge.
Our theory of governance sees two crucial roles for knowledge.
Knowledge is used to select objeets for governance and knowledge is
used in the actual instances of governance.
In dealing with the first of the two roles, we immediately confront
the paradox that we highlighted at the beginning of this chapter:
while knowledge is used to select objeets for governance, the objeets
of governance are only ever known through governance. We employ
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(Chapter 6), this is where sociology must begin to ask 'how?' (not
'why?').
Knowledge is involved in a different way in this second level in the
basic attempt at control or management. Here an acknowledgement
of existence is supplemented by attempts to impose more control or
management: the economy should be slowed, the economy should be
stimulated; the war should be stepped up, the war should be ended;
'I must control my in-love urges', 'I must see my in-loved one'; 'the
bathroom should be cleaned today', 'the bathroom will be fine until
next week'. Here knowledge is being used to select some techniques
of governance over others and to implement the chosen techniques
in the attempts to impose control or management on the objects
concerned.
The knowledge used ranges from very simple, informal knowledge
to very complex, formal knowledge and the range includes knowledge
called rational, within modern social sciences, and knowledge called
irrational knowledge. Each technique of governance may include
some simple, informal (perhaps irrational) knowledge and some
complex, formal (very rational knowledge).
Consider, as a first example, the 'control your in-love emotions'
technique for governing the self in love. This technique is informed
by a combination of: simple, informal knowledge to do with taking care
of the self passed on in 'commonsense' conversations between friends
or between parents and children; 'irrational' knowledge to do with
religin (the necessity to control one's emotions so as not to offend a
god or gods) or superstition (the necessity not to think too much
about the object of one's in-loveness for fear of 'putting them off'); and
complex, formal (very rational) knowledge to do with psychological,
medical, or sociological theories and experiments concerned to
determine scientifically the effects of emotional control on psycho
logical, medical, or social well-being passed on through formal
practitioners' advice, newspaper and magazine articles, or formal educational mechanisms.
Even the governance of an economy, to take a second example,
involves techniques which combine knowledge in a similar way.
Monetarist techniques for governing inflation, for instance, are
informed by a combination of: complex, formal (very rational)
knowledge based on economic theories and models designed to
determine the effects of changes in the money supply on economic wellbeing which is passed on in formal government documents, journal
articles and newspapers; simple, informal knowledge to do with which
policies are likely to find favour with government offlcials or international bankers which is passed on in informal conversations in
hallways and tea-rooms; and, in addition, not a little blind faith that
this is 'how people really are' (sometimes called voodoo economics).
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Principie 4
Governance is always social and always works to bind societies
together (which sometimes, ironically, involves social divisin).
In elaborating this principie, we need first to define the terms 'social'
and 'society' (terms which we have used freely thus far). We use both
terms in two related but distinct senses. In each sense we use the two
terms interchangeably, in the standard manner; that is, we use 'social'
as an adjectival form of 'society' (we also use 'the social' as an altemative,
if somewhat more particular, noun form of 'society'). We refer to one
of our distinct senses of 'society' and 'social' as traditional, the other
as Foucaultian.
The traditional sense of 'society' and 'social' is that which pre-exists
individuis in consideration of the collective actions of individuis. This
sense goes back to at least the ancient Greeks, but for sociology it is most
clearly and extremely stated by Durkheim. We say 'extremely' stated
because Durkheim uses 'society' and 'social' as that which pre-exists
individuis in consideration of the collective and individual actions of
individuis. Despite evidence of some qualification by Durkheim on
this extreme proposition (Nisbet 1965: 49-53), we stick to his extreme
form when using the traditional sense of 'society' and 'social'.
In reading Durkheim in this way we make yet another return to
Althusser's notion of the always-already. For us, society (and the
social) is that which always-already pre-exists individuis in consid
eration of their collective and individual actions. In this way, society
is always-already there. There is no point searching for the origins of
society, in this traditional sense, for all one will ever find is society.
Sociology is based on this productive tautology: society is alwaysalready there and the always-already is society. Sociology is the study
of how society is always-already there; that is, to labour the point,
sociology is the study of how - the exact detail of how - society is
society.
The Foucaultian sense of 'society' and 'social', most often presented
by its adherents in the alternative noun form 'the social', stems from
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'the bad' precisely in discovering and valorising 'the good'. This leads
to the constitution of the separated or excluded 'other'. It is in this sense
that Durkheim speaks of societies needing crime (Durkheim 1964:
72); the privileged norms are reinforced by the reaction against the transgressor. Similarly, Foucault speaks of the importance of dividing
practices which set apart the insane and the sane, the undeserving poor
and the deserving poor (S&P 1982).
Morality, community, Communications, physical structures and
sacred rituals (whether formally religious or not) are mechanisms for
this type of binding social governance pointed to by Durkheim.
Morality is a mechanism of binding social governance in that it
attempts to unify individuis and organisations (churches, companies,
schools) around particular themes of right and wrong. For this account
the content of the morality does not matter. The attempts at binding
may feature Christian morality, pagan morality, criminal morality, or
whatever. What is important is that individuis and organisations are
bound together by them being guided/coerced/encouraged/induced
towards certain ways of doing right and away from certain ways of doing
wrong. What is also important is that the binding never works
completely; at least some individuis and organisations slip through
the nets of morality, for longer or shorter periods.
'Community' is a summary term here for certain techniques of
intimacy, continuity and cohesion. The mechanism of community
operates alongside morality in attempting to unify individuis and
organisations around particular themes of right and wrong. Again, the
content is not what is important, it is the incomplete binding.
Community contributes certain themes to the right/wrong complex,
like themes of place or ethnicity. Henee, local communities or ethnic
communities are particular forms of the community mechanism going
about its (always incomplete) binding work. This mechanism constructs
'others' as different and potentially hostile.
Communications and physical structures also work together in this
Durkheimian picture of social binding. They do their work in different
ways in different societies, depending largely on the number and geographical spread of individuis and/or organisations involved. They
contribute to the morality-community mix in these different ways. In
societies with relatively small numbers of individuis and organisations
(possibly with no or very few organisations, as we have come to know
them in the modern west) spread over a relatively small area, Com
munications devices include immediate verbal communication and
limited forms of stored communication and communication over
distance (which may or may not involve forms of writing). Physical
structures are similarly simple, though religious factors may mean
quite complex physical structures are built. In these types of societies,
sometimes referred to as primitive or simple, Communications and
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attempts are made to limit or displace binding mechanisms (antireligious dissent, political revolution). We contend, along Durkheimian
lines, and this, we suggest, is very similar to the Foucaultian point,
already made, that power always involves resistance, that there can be
no genuine anti-govemance activities short of death. There can be only
anti-particular-technique(s)-of-governance activities and therefore no
genuine anti-binding activities short of death. What appear antibinding activities may be anti-particular-binding-techniques (like
religin) but they must involve some alternative binding techniques.
For example, binding may be attempted around wickedness rather than
godliness, around revolution rather than stability, or, as we hinted in
discussing Katz's work, around criminality rather than obedience to the
law. In all cases the mechanism of the sacred still does its work, as do
the other four mechanisms we have outlined.
This Durkheimian line of argumentoften raises the charge of 'functionalism'. As we said, we regard this charge in our case (and Durkheim's
and Foucault's) as misleading. In arguing that there is no escape from
governance (except perhaps in death and certainly in some extreme
instances we discuss shortly in the conclusin to this chapter) we are
not arguing that governance is complete. Quite the reverse. We are not
therefore arguing that governance makes societies function perfectly.
If there is a functionalism involved here, it is no more than the unremarkable claim that societies perpetually reproduce themselves in
some form or another. Perhaps our argument that the incompleteness/failure of governance drives this perpetual reproducing is
remarkable, but itis more dysfunctionalism than itis functionalism.
Condusion
We have defined governance and we have elaborated the four principies
of governance in line with our reading of Foucault's work and in line
with a reading of some of Durkheim's work. We are now ready to tum
to law as a form of governance, to outline the content concerns for our
new sociology of law as governance. One loose end remains to be tied
up in this chapter, concemingthe extremes of governance. As promised,
we approach the extremes of governance by answering the twin
questions, is there anything we can know which is not subject to
governance? and, can anything be governed completely?
The answer is yes, but only if we answer the two questions simultaneously. In other words, the only thing we can know which is not
governed is that which is governed completely. This is notas convoluted
as it may first appear. It suggests a circle of governance. The circle is
not visible as a circle from any point on the circle and it is not possible
to be anywhere but at a point on the circle. However, a hint about the
circle is given, but only at the point where the circle joins. This is easier
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5
Law as Governance
Introduction
Our new sociology of law as governance follows directly the four
principies of governance detailed in the previous chapter. In this
chapter we show that all operations of law are instances of governance
by discussing law in terms of each of these four principies. We thereby
assert that all operations of law are distinctive instances of governance.
What is an 'operation of law'? Needless to say, we are not engaged here
in the time-honoured jurisprudential exercise of deciding 'what is
law'? We need a basic sociological understanding of law in place.
We are working with a modified versin of Weber's famous socio
logical definition of law:
An order will be called law if it is externally guaranteed by the
probability that coercion (physical or psychological), to bring about
conformity or avenge violation, will be applied by a staff of people
holding themselves specially ready for that purpose. (Weber 1954: 5)
We modify and clarify this definition in five related ways. The first
concerns the notion of an order. Here we substitute the word 'operation'.
In this way we stress that law is doing. The slogan for our sociology of
law as governance is 'the law is what the law does'. Our second modification concerns probability as an external guarantee. We understand
by this, following closely our understanding of Foucault's govern
mentality, that a calculation is made about probability by some actor
or other (whether individual or collective) using a definite means of
calculation. This is a crucial aspect of our modified Weberian definition
of law, as we show shortly. Our other three modifications are more
points of clarification.
Third, we read Weber's physical or psychological coercion very
broadly, such that it includes any tendency towards conformity with
an historically received norm or the avengement of a violation of an
historically received norm involved in the calculation(s) being made.
Fourth, following Weber (and here Weber and Durkheim are very
much on the same ground), we understand a 'staff' to include any specifically nominated person or persons (in its broadest legal sense, covering
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organisations as well as individuis), not just modern bureaucratically organised mechanisms. For Weber, of course, it is the specialisation
involved, the 'holding themselves specially ready', whether it is the clan
acting in a blood f eud or the judge sitting in a modern courtroom, which
separates law from custom.
Finally (and we have each elsewhere, separately, made this point,
albeit in different contexts; see Hunt 1992, Wickham 1987) we
understand 'law' as a convenient shorthand term for the diverse
operations of diverse laws. In other words, any time we use 'the law'
or 'law' (singular) we are using it in this way, as a shorthand. We are
especially keen to avoid the tendency to allow the definite article to
signal law as an essence of society; 'the law' is thereby taken to be the
necessary component, or even a necessary component of a society,
something which is essential to its existence, which defines and
organises its existence, in much the same way that crude Marxist
accounts of a society posit 'the economy' as essential or crude liberal
accounts posit 'the individual' as essential. For us, 'law' and 'the law',
while used in singular form as a shorthand, indicate very plural entities,
namely, the varied operations of different laws. Speaking of 'law' or 'the
law' in referring to these diverse operations should be read as no more
essentialist than speaking of 'procedure' or 'the procedure' when
referring to the diverse operations of bureaucracies. Just as one can speak
of bureaucracies following 'procedure' or even 'the procedure' when
referring to the vast array of bureaucratic procedures in operation in
any modern western nation, without invoking the idea that modern
western societies are essentially about 'the procedure', so we speak of
'law' or 'the law' without invoking the idea of the essentialism of law.
So, our working sociological definition of law (using Weber, modified
and clarifled by our Foucaultian/Durkheimian concern with governance)
looks like this:
An operation is called law where it involves a calculation by some
actor or other (individual or collective), using a definite means of cal
culation, towards conformity with an historically received norm or
the avengement of a violation of such a norm, where a staff holding
themselves specially ready for directing the conformity and/or
conducting the avengement is involved.
We conclude this introduction with concrete clarification of this
abstract definition by means of two examples.
All steps involved in the prosecution of a thief (the theft itself, the
investigation, the conviction, the punishment) can be said to be
operations of law in terms of our working definition. For a theft to be
reported (even if only to a friend or family member) some calculation
must be made that a violation of an historically received norm about
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Law as Governance
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Principie 2
Law as governance involves power and as such involves politics and
resistance.
As power for us is a technical process by which governance drives the
machine of society, law, for us, is part of this technical process. Law
is a part of power; it helps drive society incompletely or imperfectly.
Law is a part of mundanely productive power, helping power produce
all aspects of social life. Law is neatly tied into the equation whereby
'power' is simply another term for the process of governance. Just as
we can summarise certain govemmental techniques as 'state power',
so we can summarise legal techniques of governance (legal rules, court
procedures, plice procedures) as 'law power' or 'legal power', if we so
wish. We do not urge the use of such a term but we make this point
anyway in an attempt to ensure the reader cannot understand law as
separate from and in the service of some mysterious removed power.
Law is power in the very productive way that law is governance.
In being mundanely productive, law is deflnitely not spectacularly
negative, especially not spectacularly conspiratorial. Law is not the
possession of any individual, group, or organisation which directs
legal processes to its or their own ends. 'Law', as a part of
power/governance, ref ers to the technical processes which produce all
operations of law, as per our definition.
It should be noted that law has become mundanely productive as
part of a historical process which has seen the reduction of its parti
ciparon in the spectacle of power. Historically many forms of power,
military, political and legal, were occasional but spectacular in their
operation. They could descend with sudden and terrifying forc, but
they lacked the capacity for sustained and extensive exercise. As more
extensive mechanisms of power became available, for example by
expansin of state agencies into dispersed localities or by the formation
of plice forces, the spectacular element became increasingly symbolic,
but still relevant. As Douglas Hay's study of eighteenth-century England
shows, the parade of robed judges supported by military squads was
an important demonstration of the symbolic violence of the law (Hay
1975; Spierenburg 1984).
The 'politics of law' is a summary term for the processes which
have emerged and which continu to emerge, in myriad form,
concerned with the contestation of techniques of law as governance.
This is not about takingup positions or stances for or against 'the law'
or some aspect of it. While we arge shortly that analysis of the
politics of law involve assessments of the advantage and/or disad
vantage of particular actors, the idea of taking some general position
in regard to legal politics is not important to us; it is the technical
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between the partners and with an eye to no-fault divorce, based on irretrievable breakdown, with just divisin of joint property and just
divisin of care and maintenance of any children. These techniques
are always under challenge by alternative techniques, for example
techniques concerned to enforce patriarchal control of families, or to
protect women from violent husbands and/or ensure 'the welfare' of
any children. Here the form of the challenge might be that modern
marriage and divorce law is 'too feminist', or 'too patriarchal', or unrealistic. The outcome might be modified marriage and divorce
procedures, but whatever, legal politics is created, in this case often
bitter, dramatic political contests as well as more mundane passive
contests.
Resistance to law as governance is very much part of the fact that
law can only ever help a social machinery run imperfectly or incompletely. Resistance to law is, like other forms of resistance, a
counter-stroke to power.
We can sensibly speak of the challenge posed by sovereign flat to the
governance of business dealings by contract law as resistance to law as
governance, as we can of the challenge posed by blood feud techniques
to the governance of passion killings by modern western criminal
law and of the challenge posed by patriarchal control to the governance
of marriages by family law. We can even say that those individuis,
groups and organisations involved in promoting these various
challenges are engaged in resistance to the law. This should not be taken
to mean that resistance drives the law in some conspiratorial sense.
'Resistance bringing down the law' or 'the law repressing resistance to
avoid being brought down' are not central themes in our picture of legal
politics. Politics and law operate in a much more technical, usually
much more mundane, fashion than these somewhat romantic for
mulations suggest.
This is not to deny that the politics of law sometimes features
exploitation and repression. At least two of our examples, passion
killing and marriage, are rich with the possibility of fierce and bloody
contests as well as passive and mundane contests. In talking of
outcomes of advantage and disadvantage in discussing the politics of
law as governance, we mean to cover the full range of outcomes from
the mundanely passive to the spectacularly brutal. The contests over
law as governance which make up legal politics can only, we are
arguing, be studied at specific times. Analysis of legal politics involves
a series of snapshots of ongoing contests. Attributions of advantage/disadvantage to the outcomes and actors involved should only ever be
taken as attributions to do with a historically particular contest.
If analyses of the politics of law involved in an ongoing particular
instance are undertaken over a long period of time and continu to
reveal outcomes whereby one actor or group of actors remains in a
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ward, even in regard to the fact that legal techniques of governance may
prevent killings in 99 per cent of instances when passions rise; 1 per
cent is sufficient to make our point about the role played by the
imperative to resist in the incompleteness/failure of legal governance.
The legal governance of business relationships is far more mundane.
Passions rarely rise to point involved in passion killings. Yet passion
certainly plays a part in contract negotiations and enforcement, though
much more in line with Bailey's The Tactical Uses o f Passion than
Katz's Seductions ofCrime. The imperative to resist is involved in this
example in that mysterious way of 'things never quite working' we
ref erred to in the previous chapter, a meeting going awry in ways that
no single participant anticipates or aims for, components not arriving
on time despite the best procedures, contract negotiations ending up
in court despite goodwill on the part of all parties involved, etc.
The legal governance of marriage is a mix of the mundane and the
spectacular when it comes to the role of the imperative to resist.
Breaches of legal governance by this imperative occur mundanely in
events like inequitable divisin of marital property; irrational urges
whereby one partner mistrusts the other and tries to maintain dignity
via petty battles over who owns what are very common pieces of
evidence that the legal governance of marriage to ensure equity is always
incomplete/failing in the face of the imperative to resist. Sometimes
the irrational urges involved in resisting the legal governance of
marriage spill over into the realm of the spectacular. Violence by one
party against the other, usually the man against the woman, is the result.
This spectacular resistance to governance itself occasionally escalates
as the imperative to resist that legal governance designed to ensure
equitable marriages suddenly becomes the imperative to resist that legal
governance designed to prevent passion killings.
Principie 3
Law as governance always involves knowledge.
As with governance in general, knowledge is used to select objects for
legal governance and knowledge is used in the actual instances of legal
governance. There are some important clarifications and qualifications
necessary as we extend this aspect of our theory to law as governance.
Here again we confront a paradox: that while knowledge is used to select
objects for legal governance, the objects of legal governance are only
ever known through governance. We stress the difference between this
formulation and that we offered for governance in general in the
previous chapter. Here, we are allowingthat objects of legal governance
may be known through non-legal governance. Again, we turn first to
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Law as Governance
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Principie 4
Law as governance is always social and always works to bind societies
together (which sometimes, ironically, involves social divisin).
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Law as Governance
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Law as Governance
115
binding. The law helps them as they contribute to the moralitycommunity mix in both 'simple' and 'complex' societies. In 'simple'
societies, with relatively small numbers of individuis and organisations
(or possibly no organisations) spread over a relatively small area, the
law helps reglate and control immediate verbal communication (via
taboos on certain words, for example) and any limited forms of stored
communication and communication over distance (via legal recognition of any designated formal communicators, especially in their
capacity as communication storage devices, like storytellers or dancers).
In such societies, the law helps the physical structures side of the
combination it forms with communication by, for example, legally
marking certain structures, particularly religious structures, as special.
While the law-communications-physical structures nexus is never
complete or completely successful in its binding work in these societies,
it has less binding work to do than it does in societies with relatively
greater numbers of individuis and organisations and/or with relatively
greater distances between them.
In these more complex societies, with their much more complex com
munication devices and physical structures, the law aspect of the
law-communications-physical structures nexus still has to enforce
taboos on certain Communications content, to provide formal recognition to designated communicators (telephone companies, universities,
televisin networks, etc.) and to mark certain structures as special
(schools, hospitals, prisons, churches, government offices, business
centres, shopping centres, etc.). But it does m uch more as well. For
example, it regulates and plices ownership systems for communicated
ideas and words, it backs up the taboos on certain communication
content with libel laws and censorship provisions, it regulates competition in Communications industries, it regulates to ensure the
spread of Communications technology, it regulates complex transportation forms and patterns and it regulates the complexities of
modern urban spaces. Little wonder, then, that incompleteness/failure
of law's binding work is more apparent in regard to these mechanisms
in complex societies.
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Condusion
The content of our new sociology of law as governance has been
outlined in terms of the four principies of governance. Our Weberian
definition of law is central to these concerns, in limiting the field for
a sociology of law as governance. Admittedly it is a large field, but it
is a limited field nonetheless. Now that we have a field, we need some
rules for the game. The rules, in the spirit of Durkheim, are rules of soci
ological method. It is to these that we now turn, but with Foucault in
our eyes as much as Durkheim.
6
Method Principies for the Sociology of
Law as Governance
Introduction
Foucault and Durkheim come together in this chapter, but not in the
sense of trying to forc Foucault's genealogy into the framework of
Durkheim's Rules o f Sociological Method. That would not, in our
estimation, be particularly productive, even if possible. Indeed, we
attempt no explication of either theorist's work here. We have done
all the explicating of Foucault's work we are going to do in this book
and explication of Durkheim's work is outside its scope. Rather, we put
Foucault and Durkheim together by giving our Foucaultian project some
Durkheimian methodological spirit; we draw on insights by both
writers in doing this but mainly on Durkheim's insights.
We have discussed the fact that Foucault refuses to be pinned down
on matters of method. We find this fascinating for its philosophical
ramiflcations but decidedly unhelpful for our task of outlining a new
approach to the sociology of law, even though our new approach is
definitely Foucaultian. We offer five explicit principies of method
with the same conviction displayed by Durkheim (and Weber); we are
certain that a strong sociology needs a set of explicit methodological
principies.
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Principie 2
The only tools employed by the sociology of law as governance are
attention to detail and careful generalisation.
At least the flrst half of this principie has been already introduced. By
'attention to detail' we mean the presentation of details of genealogical social facts with great care and exactness. The sociology of law as
governance is concerned to compile more and more details of instances
of law as governance, with as much care and exactness as possible, in
line with the four content principies outlined in the last chapter. This
is to say that the sociology of law as governance involves the detailing
of more and more instances of the 'attempt - incompleteness/failure
- attempt' cycle of the legal management of things, always featuring
different techniques (including possibly different technologies of
power) and political contests around these techniques, always involving
the use of knowledge and always being part of society, part of attempts
at social binding (in the traditional and Foucaultian sense of society).
Of course the attention to detail must also be in line with the four
method principies of this chapter.
Turning now to the second half of this method principie, all eight
principies (four of content, four of method) of the sociology of law as
governance are established, careful generalisations. They are generalisations reached over a long time by induction from a great deal of
careful detail. In using this set of generalisations as the basis for the subdiscipline's work, it has to be said that at least some deduction is
involved in the sociology of law as governance. While we take induction
to be a more likely indication of careful research, neither can be said
to guarantee it. Indeed, nothing can be said to guarantee it. The most
a discipline or subdiscipline can do, if it has attention to detail at its
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heart, by way of ensuring the care which defines this research tool, is
to stress the importance of a careful approach in all its institutional
dealings with its practitioners, through its books, journals, conferences and university departments.
In studying the legal profession, for example, the sociology of law
as governance compiles more and more details of the ways the
profession is governed and the ways it contributes to legal governance
with as much care and exactness as possible, in line with the four
content principies outlined in the previous chapter. This is to say
that the sociology of law as governance details instances of the 'attempt
- incompleteness/failure - attempt' cycle in regard to the legal
profession's governance of court procedures, itself, government actions,
conveyancing, etc. and instances of this cycle in regard to the
governance of the legal profession by governments and some others
(perhaps private industry), with attention paid to the techniques of
governance involved (like professional codes of ethics, government legislation, internal manoeuvring, reliance on traditions, etc.) and to
the political contests around these techniques (like contests between
governments and the profession about government regulation in the
face of the profession's insistence that internal codes of ethics are
sufficient, contests over the profession's attempted monopoly on con
veyancing and on court procedures, contests over a particular business
deal, etc.). The detailing always covers the use of knowledge (the ways
the profession and governments deploy knowledge in their contests
over regulation, the ways knowledge of tradition is used by the
profession to protect itself, etc.) and always covers the social binding
dimensions of the legal governance in question (the ways the profession
constitutes itself as a community, thereby excluding others, the role
of the profession in binding actors around the idea of the rule of law
and due legal process, etc.).
It is on this basis that we discuss the production of new generalisations. As more and more details are compiled, new generalisations aris.
They may concern any aspect of the content principies elaborated in
the previous chapter or method principies elaborated in this chapter,
they may even lead to new content principies or new method principies.
It is impossible to predict what new generalisations will arise and it is
improper to attempt to do so; the sociology of law as governance is
restricted to attention to detail and careful generalisation; prediction
is not a proper part of the subdiscipline's work. What can be properly
said, as a careful methodological generalisation, is that all intellectual
disciplines produce new generalisations; it is historically part of their
work.
The examples we use in outlining the sociology of law as governance
are generalisations arrived at in the manner discussed above. When we
talk of the legal governance of passion killings, marriages, business
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Principie 3
The basic production work of the sociology of law as governance must
always be distinguished from the uses of its results.
The attention to detail and careful generalisation which make up the
subdiscipline are not at all the same thing as the uses to which the details
and generalisations are put. We know, especially from Foucault's work,
that the products of the social sciences are used for many and varied
purposes, especially govemmental purposes, not all of them noble.3 The
sociology of law as governance can take some steps to limit the use of
its details and generalisations, but no more than any other social
scientific endeavour; these steps, it must be recognised, are minimal.
For example, the sociology of law as governance may compile many
details about the legal governance of abortion in line with its principies.
123
It may even come up with new generalisations which can act as new
principies. These products are the result of the basic work of the
sociology of law as governance. Yet they might be used by any number
of actors not connected to the sociology of law as governance such as
women contemplating abortion, politicians, political activists, plice,
judges, lawyers, doctors, hospital administrators. Furthermore, they
might be used for a variety of purposes - to help in deciding whether
to have an abortion, to help frame legislation banning abortions, to
help frame legislation making abortions more accessible, to help an antiabortion political campaign, to help a pro-abortion political campaign.
The sociology of law as governance can take some steps to limit some
or all of these uses of its products. It can, through its institutional
dealings (university departments, books, journals, conferences),
encourage governments to pass laws limiting the use of its products to,
say, doctors and hospital administrators (the irony of encouraging legal
governance to protect the study of legal governance is overwhelming).
It can encourage other institutions to use internal procedures (like
lawyers' and doctors' codes of ethics) to limit the use of its products;
and it can use existing legislation to do with intellectual property
and defamation to limit the use of its products. It can do little more
than this and these steps are minimal. In modem western societies, with
their elabrate knowledge production, storage and reproduction tech
nologies, the spread of knowledge products like those of the sociology
of law as governance is almost impossible to contain.
The sociology of law as governance cannot survive as an independent subdiscipline if it does not maintain this strict distinction between,
on the one hand, attention to detail and careful generalisation and, on
the other, their uses. The definition of governance at the heart of the
subdiscipline is so wide it is always potentially under pressure from a
huge variety of governmental concerns interested in directing its
production activities. We glimpsed this in the above discussion of the
legal governance of abortion. The situation is similar no matter what
instance of law as governance is being studied whether it is crime, plice,
legal profession, judiciary, contract, company law, or marriage. The dis
tinction featured in this method principie provides at least some
protection against the encroachments of the users of the subdiscipline's
products on its production mechanisms, though of course, as we have
stressed, it does not provide a guarantee of independence.
Within this principie we can see an important difference between
the methodology of the sociology of law as governance and Durkheim's
methodology (and indeed most other established methodologies of
Science and social Science). This difference centres on the notion of the
uses of the knowledge products. For the sociology of law as governance,
all uses are uses, no matter what ame they are given and no matter
which agency or actor is doing the using, including other knowledge-
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Principie 4
The sociology of law as governance is a continuously reflexive
subdiscipline.
The ground on which the subdiscipline's reflexivity exercises itself has
already been laid: the sociology of law as governance is reflexive in that
among the instances of governance it studies are the uses to which its
own products are put, including the uses to which it itself puts them.
For example, in studying instances of the legal governance of
company takeovers, the sociology of law as governance focuses on the
details of the 'attempt - incompleteness/failure - attempt' cycle (the
techniques of boardroom lobbying, government regulation and the
politics involved, such as contests to impose government regulation
on boardroom lobbying, etc.). These details may or may not be linked
to other details to produce a new, careful generalisation. Throughout
this process, indeed as part of it, the sociology of law as governance
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must compile details of the uses to which its details are put, perhaps
by the actors involved (company directors, government regulators, journalists, etc. may all find the subdiscipline's details useful), perhaps by
other branches of social Science (economics, political Science, even
history, may find these details useful). Of course this must also involve,
wherever and whenever it happens, compiling details of the uses to
which it, itself, puts these details. This may mean compiling details of
the subdiscipline producing new, careful generalisations from its
stockpile of details; this is the only proper use of its products we allow
for the subdiscipline. Or it may mean compiling details of internal uses
of the details which we regard as methodologically improper, but
which we acknowledge as an inevitable part of any discipline's existence.
This is a crucial acknowledgement. It is perfectly consistent with our
theory of governance. The methodological principies, including the
principie restricting the subdiscipline's uses of its own products, are
techniques of governance, techniques for governing the subdiscipline.
This governance, of course, is always incomplete (sometimes to the point
of failure). So we do not expect the methodological principies to work
completely as governing devices. We are building into this principie
of reflexivity an imperative for the sociology of law as governance to
compile details of its own methodologically improper uses of its own
products; of course we hold out no hope that this imperative works
completely; it may even fail spectacularly. This point is extremely
Foucaultian; Foucault is very f ond of forcing disciplines to examine their
internal use of their own products, especially where this means making
them face up to the skeletons in their own cupboards.
The sorts of things we have in mind here, which are not always spec
tacularly dirty, we stress, are that some practitioners of the subdiscipline
may try to establish a new generalisation as a new content principie
while others resist on the grounds that not enough details have been
completed; some practitioners may attempt to import generalisations
into the subdiscipline from elsewhere as new content principies,
perhaps to do with class, race or gender, while others resist, as well as
the much rarer and more sordid instances whereby some practition
ers try to forc other practitioners out of the subdiscipline's institutions
by denying access to journals or refusing tenure.
In this vein, the sociology of law as governance must be continuously
aware of its own institutional nature. The practitioners must be aware
that it is its institutions which set its limits, not some pur quest for
knowledge and/or truth. It is precisely the institutional character of the
subdiscipline (that is, its institutional governance and the politics of
this governance) which determines which objeets are addressed and
the manner in which they are addressed. For example, it is the insti
tutional arrangements (a university department and its relations with
outside bodies, books, journal articles) and the politics associated with
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Condusion
The four method principies outlined in this chapter make the sociology
of law as governance look remarkably similar to many nineteenthcentury sociological ventures; not just those of Durkheim and Weber,
but also those British and continental sociological projects which
sought to map a social terrain and which saw little difference between
statistics and sociology (Abrams 1968). Obviously the presence of a Fou
caultian component in our methodological discussion, the importance
of genealogy, renders this comparison somewhat inaccurate. Nevertheless, in terms of the spirit of methodology, the comparison is
accurate. We are perfectly happy to be seen to be proposing the outline
of a map. The social terrain we want the map to cover is that on
which law is a crucial part of governance. The sociology of law as
governance is very much a kit for mapping.
Introduction
This book has moved its focus from introduction to Foucault's work
on law, through explication and criticism of this work, on to an
outline for a new Foucaultian sociology of law. The first two parts of
the book stand concluded and we use this conclusin to wrap up the
third part. We offer a more detailed example of the work of our new
sociology of law as governance than any presented thus far. We focus
on a standard sociology of law topic, namely, the operation of modern
western plice forces. We discuss this object in terms of the eight
principies of operation of our new sociology of law, but not separately.
We have presented the principies separately for ease of exposition.
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129
130
131
132
Notes
134
8.
9.
10.
11.
12.
13.
Notes
135
136
References
138
Other works
Abrams, Philip 1968 Origins o f British Sociology, 1834-1914 Chicago:
University of Chicago Press.
Albury, Rebecca 1989 'Abortion? But I Thought That Was Settled Years
Ago' 31/32 Refractory Girl.
Alexander, Jeffrey C. (ed.) 1988 Durkheimian Sociology: Cultural Studies
Cambridge: Cambridge University Press.
Althusser, Louis 1969 'Contradiction and Overdetermination' in For
Marx Harmondsworth: Penguin.
Austin, John 1955 The Province o f furisprudence Determined [1832]
London: Weidenfeld & Nicolson.
Bailey, Frederick G. 1983 The Tactical Uses o f Passion: An Essay on
Power, Reason and Reality Ithaca: Cornell University Press.
References
139
140
Durkheim, Emile 1965 The Elementaiy Forms ofReligious Life [1912] New
York: Free Press.
Dworkin, Ronald 1986 Law's Empire Cambridge, Mass: Harvard
University Press.
Eribon, Didier 1991 Michl Foucault Cambridge, Mass: Harvard University
Press.
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143
Index
Albury, 136
Althusser, 88, 92, 109, 112
always-already, 88-9, 92-4, 109,
112-14, 118
anthropology, 119
Austin, 60
Bailey, 87, 109
Bataille, 85
Bauman, 136
biology, 7-8, 91-2, 111, 131
body, 4, 13, 15-16, 19, 49, 69,
135
Borges, 9
Buddhism, 98
Burchell, 75
calculation, 20, 27, 29, 53, 76,
93, 99-103, 111-13; see also
statistics
capitalism, 15-16, 29-30, 35
cause(s), 6, 5 3 ,1 2 4 , 134
chance, 7, 28, 32; see also contingency
citizenship, 53, 64, 67, 134
class, 4, 18, 19-20, 28, 30-4, 41,
47,
69, 86, 122, 125
classical, 10, 34, 43-5, 56, 59;
see also pre-modern
conditions of possibility, 6, 9,
12,
33, 119-20, 133; see
also Foucault
conspiracy, 47, 81, 83-4, 104,
106, 130
consumption, 68, 96
contingency, 33, 119-20, 131;
see also chance
144
Index
64; style of writing, viii,
3-6; see also genealogy;
governance; government;
law; politics; power
freedom, 44, 71, 86
functionalism, 97, 116
Garland, 136
gaze, 21, 47, 49, 69; see also
surveillance
genealogy, 6, 32, 70, 88, 117,
119-20, 126, 128
generalisation, 23, 82, 120-3,
127, 129, 132
Glucksmann, 135
Gordon, 54, 64, 75, 96, 135
governance: of clean
bathrooms, 80-2, 86, 88,
90; cycle of, 83, 88, 120-1,
124, 129-30; definition of,
56,
78-9; of economies,
81-5, 8 8-90; of ethnic
strife, 93-5; of love affairs,
78, 80-3, 85-94; of unem
ployment, 79-80;
perpetuation of, 80-2, 94,
97, 114, 116, 129-30; see
also law; politics; power
government: definition of, 79;
Foucault and, 21-8, 49-50,
52-3, 63, 67, 134; see also
governance; government
ality
governmentality: definition of,
24-6, 52, 75-6; periodisation of, 27, 76-7; see also
governance; government
Habermas, 61, 63, 67, 135-6
Hart, 60
Hay, 104
Hayek, 136
history, vii, 5 ,2 8 ,3 2 ,4 0 ,1 1 9 ,
125
145
146
Palmer, 62
Parsons, 78
Pearce, 62
Peirce, 136
penology, 91
philosophy, vii, 5, 24, 40, 85,
117,136
plice and policing, 4, 27, 47,
52-3, 64, 101-5, 109,
115-6, 118-9, 123-132
political economy, 76-7
political science, 125
politics: and advantage/disadvantage, 82, 84-5, 106-7;
analysis of, 81; as contesta
tion, 82-6, 104, 120-1,
124, 126; definition of, 82;
technical nature of, 82, 84,
130; see also governance;
law; power
Poulantzas, 31, 59
power: and absolutism, 46, 53,
60-2; aggregation of,
17-19, 30-1, 60, 69-71;
constraints on, 42, 62;
definition of, 18, 33-4, 41,
8 0 -1 ,1 3 4 ; juridical form
of, 40, 44, 46-8, 50, 54;
and knowledge, 12-14, 27,
41; as machine, 19-20, 22,
46, 49, 70, 80-1, 104;
micro form of, 20, 41, 47,
49, 51, 70; monarchical
form of, 43-6, 49, 54, 58,
60, 65, 135; as negative,
14-15, 17, 34, 40-1, 50, 60,
65, 68-9, 81-2, 104; as
positive, 15-16, 41, 81; see
also governance; law;
politics
pre-modern, 4, 44, 49, 56, 59,
62, 68, 7 0 ,1 3 5 ; see also
classical
predictions, 121, 124
prisons, vii, 4-6, 13, 17, 21, 29,
Index
45-7, 52, 60, 101-3, 136;
see also punishment
psychiatry, 8, 31, 42, 57, 69,
91
psychology, 5-6, 1 3 ,1 6 , 21, 30,
40, 43, 46, 48-52, 59-60,
65, 91, 100-2, 136
punishment, 4, 6, 13, 16, 21,
30, 40, 43, 46, 48-52,
59-60, 65, 91, 100-2, 136;
see also prisons
147
148